PRESENTATION ON REFUGEES AMENDMENT BILL, 2016 [B12—2016] PORTFOLIO COMMITTEE ON HOME AFFAIRS

1. PRESENTATION ON REFUGEES AMENDMENT BILL, 2016 [B12—2016] PORTFOLIO COMMITTEE ON HOME AFFAIRS 11 October 2016

2. Background to Refugees Amendment Acts 2008 and 2011 and Refugee Amendment Bill, 2016… • The 2008 and 2011 Refugees Amendment Acts are not in operation as yet, although they appear on the Statute Book, due to certain challenges that will be outlined below. 2008 Refugees Amendment Act This Act dealt with, amongst others, the dissolution of the Standing Committee for Refugee Affairs (“SCRA”) and the Refugee Appeals Board (“RAB”) and established the Refugee Appeals Authority (“RAA”).

3. …Background to Refugee Amendment Acts 2008 and 2011 and Refugee Amendment Bill, 2016… • The initial proposal was to have the RAA dealing with both appeals and reviews. • The Portfolio Committee disagreed and instead proposed that the powers to review the manifestly unfounded, abusive or fraudulent applications be conferred upon the Director-General (DG), which led to an incorrect cross referencing later in the Amendment Act.

4. Background to Refugee Amendment Acts 2008 and 2011 and Refugee Amendment Bill, 2016… • The incorrect reference to section 24(3)(b) in section 24B of the 2008 Amendment Act meant that this Amendment Act could not be brought into operation without correcting the incorrect reference. Refugees Amendment Act, 2011 • In 2011, the incorrect cross referencing was corrected in the Refugees Amendment Act, 2011, which Amendment Act further introduced the Status determination Committee in the place of Refugees Status Determination Officers (RSDO’s) to adjudicate applications. • The model for the Status Determination Committee could however not be implemented by the Department due to the fact that model was a flawed model and due to a lack of funding.

5. Background to Refugee Amendment Acts 2008 and 2011 and Refugee Amendment Bill, 2016… • This then led to the drafting of the Refugees Amendment Bill, 2016, in order to, amongst others, do away with the Refugee Status Determination Committee established in the 2011 Refugee Amendment Act and retaining the RSDOs. • Opportunity was also taken to address practical challenges faced in the management of asylum seekers and refugees. E.g. courts are, correctly, guided by the Constitution when interpreting the Refugees Act and regulations but tend to make decisions in favour of asylum seekers regardless of the practical consequences of judgments for the Department. • The Watchenuka judgement, for example, gave rise to an interpretation by SCRA that all asylum seekers should be allowed to work and study pending finalisation of their applications for asylum. This has led to a situation where section 22 permits are treated as work and study permits, respectively, without the need to comply with any of the relevant provisions of the Immigration Act. • The right to work and study is now a pull factor for economic migrants who then “clog” the Asylum Seeker Management (ASM) system, resulting in inefficiencies.

6. Refugees Amendment Bill, 2016 • The main objects of the Refugees Amendment Bill, 2016, are — • to insert, delete and amend certain definitions; • to make further provisions relating to disqualification from refugee status and losing such status; • to provide for measures to combat fraud and corruption in Refugee Reception Offices, in the Standing Committee and in the Refugees Appeals Authority; • to omit provisions referring to the Status Determination Committee; • to substitute certain provisions relating to the Refugee Appeals Authority (''RAA''); • to provide for the re-establishment of the Standing Committee for Refugee Affairs (''SCRA'') and to confer additional powers on the SCRA; • to confer additional powers on the Director-General; to clarify the procedure relating to conditions to asylum seeker visas and abandonment of applications; • to revise provisions relating to the review of asylum applications; • to provide for the withdrawal of refugee status in respect of categories of refugees; • to provide for additional offences and penalties; • to provide for matters connected therewith.

7. Main functions of Officials, SCRA and RAA • RSDOs: must consider applications and may grant asylum, or reject as manifestly unfounded or unfounded • SCRA: must review RSDO decisions if rejected as manifestly unfounded (earlier amendment acts gave this power to DG), and may monitor and supervise other decisions, including decisions to grant asylum and rejecting applications on the basis of being unfounded. Section 11 of the current Act included a quality assurance process regarding the decisions of RSDOs which has fallen away and is now re-introduced. • RAA: must consider appeals against decisions where application rejected as unfounded.

8. Refugees Amendment Bill, 2016 Section 1 (Definitions) - Clause 1 of Bill: • “dependant” amended to limit dependants to minor children of asylum seeker or refugee (whether born prior to or after application for asylum); spouses and destitute, aged or infirm parent of asylum seeker or refugee; all of whom must be included in application for asylum. Currently any “unmarried child” and “member of the immediate family” also qualify for dependant status, casting the net too wide – nothing precludes other possible dependants from self applying for asylum; • “immediate family” definition removed because of adjustments to definition of ‘dependant’; • “permit” changed to visa in line with use of terms in Immigration Act; • “marriage” amended to omit reference to Islamic law and rites as the Act already provides for a marriage concluded ito the laws of a foreign country. ; • Definition of “Standing Committee” inserted; • Definition of “Status Determination Committee” omitted due to abandonment of this concept.

9. Refugees Amendment Bill, 2016… Section 4 (Disqualifications from obtaining refugee status – the following added) - Clause 2 of Bill: Our courts do recognise the maxim that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe. In an attempt to further limit the large number of undeserving individuals seeking asylum in RSA, the following additional disqualifications have been included: • If committed a crime involving torture as defined in the Prevention and Combating of Torture of Persons Act 13 of 2013; • If committed a crime in the Republic listed in Schedule 2 to the Criminal Law Amendment Act 105 of 1997, or a crime punishable by imprisonment without the option of a fine; • If committed an offence in relation to the fraudulent possession, acquisition or presentation of ID card, passport, travel documents, temp residence visa or permanent residence permit; • Is a fugitive from justice in another country where rule of law is upheld by recognised judiciary; • If entered the Republic other than through a designated port of entry and fails to give compelling reasons for such entry; or • If fails to apply for asylum within five days of having entered the Republic in the absence of compelling reasons.

10. Refugees Amendment Bill, 2016… • Section 5 (Loss of Refugee Status – the following added) - Clause 3 of Bill: • Once a person has acquired refugee status, and mindful of the principle of sovereignty, the following additional grounds for losing that status have been included: • If a person avails himself or herself in any way of the protection of his or her country or returns to visit such country; • If committed a crime in Republic listed in Schedule 2 to the Criminal Law Amendment Act 105/1997, or a crime punishable by imprisonment without the option of a fine; • If committed an offence in relation to the fraudulent possession, acquisition or presentation of ID card, passport, travel documents, temporary residence visa or permanent residence permit; • If the Minister, after consultation with Cabinet, resolves to cease the recognition of refugee status of any individual refugee or category of refugees, or to revoke such status.

11. Refugees Amendment Bill, 2016… Section 7 (Delegation of powers) - Clause 4 of Bill: This clause expands certain powers that may not be delegated by Minister. Heading of Chapter 2 amended - Clause 5 of Bill The heading of Chapter 2 is amended in order to provide for re-establishment of SCRA, which was dissolved by the Refugees Amendment Act, 2008. Section 8 (Establishment of RROs– the following added) - Clause 6 of Bill: • DG now empowered to both establish and disestablish Refugee Reception Offices in order to address previous challenges; • The DG currently only has the power to establish RROs.

12. Refugees Amendment Bill, 2016… Sections 8A – 8J (Refugee Appeals Authority) - Clauses 7 – 12 of Bill): Given the practical experience with the RAA (currently known as RAB) and in order to address operational issues, the following improvements have been included: • All members must be legally qualified and their number is to depend on volume of work, and members may consider appeals individually. • Members appointed for period not exceeding 5 years at a time and such member may be re-appointment for number of additional periods not exceeding 5 years at a time - periodic appointments possible if circumstances so require; • Additional disqualifications from serving as member have been added (removal from previous office because of fraud, theft, corruption, refusal to submit to vetting investigation or failing such investigation); • Members must be SA citizens, but foreigners may be appointed if they have expertise that would significantly enhance the capacity of the RAA; • Minister may summarily remove member if becoming disqualified; • Provision on vacancies repealed as periodic appointments now possible.

13. Refugees Amendment Bill, 2016... Sections 9A – 9H (Re-establishment of SCRA) - Clause 13 of Bill): • Additional powers conferred on SCRA - mainly reviewing of decisions of RSDOs that applications are manifestly unfounded, abusive or fraudulent, and monitoring and supervising of decisions by RSDO’s granting asylum or as unfounded, advising Minister/DG on matters referred to it, including advice on training to members of staff; • Provisions relating to members of SCRA (composition, term of office, disqualification of membership, etc.) mirror those relating to members of RAA.

14. Refugees Amendment Bill, 2016... New section 20A (Crime prevention and integrity measures) - Clause 14 of Bill): In order to address the scourge of corruption experienced among officials and other operatives within the ASM system, recently also the focus of a television programme, the following new provisions are included: • A procedure for integrity testing of staff members at any Refugee Reception Office, including persons who are not members of staff but who perform any functions at such an Office, and members of the SCRA and the RAA is introduced. • All members of staff must, after the commencement of the Act and from time to time thereafter, undergo integrity testing as a measure to combat or prevent fraud, corruption or any crime of which dishonesty is an element. • Any information gathered in terms of 20A(2) may be used for instituting criminal, civil or disciplinary proceedings and further used as evidence, subject to admissibility of such information as evidence. Information may also be used to institute a vetting investigation ito the National Strategic Intelligence Act, 1994. • Refusal to submit to a vetting investigation, or failing such investigation would, in the case of public servants, lead to disciplinary measures. In the case of members of SCRA and the RAA, refusal or failure would lead to dismissal.

15. Refugees Amendment Bill, 2016… Section 21 (Measures in respect of asylum seeker applications) - Clause 15 of Bill: In order to address practical challenges faced within the ASM system, and also in an attempt to distinguish well-intentioned asylum seekers from others, the following provisions have been included: • Asylum seekers required to apply within 5 days of entry into the Republic. • Asylum seeker who is not in possession of asylum transit visa (issued at port of entry in terms of section 23 of the Immigration Act, upon declaring intention to seek asylum in the Republic) must give reasons why he or she is not in possession of such a visa as this visa is a requirement. • DG may, by notice in the Gazette, require any category of asylum seekers to report to any designated Refugee Reception Office if deemed necessary for the proper administration of the Act. • Asylum seeker required to declare all spouses and dependants, whether in RSA or not. • Application for asylum must be rejected if found to contain false, dishonest or misleading information. • Presumption that an applicant is proficient in the language he or she indicated as language of preference on his or her application.

16. Refugees Amendment Bill, 2016… Section 21A (Unaccompanied child and person with mental disability) - Clause 16 of Bill: • The clause amends this provision to replace the words “Any person with a mental disability” with the words “any person reasonably suspected to have a mental disability”, as it may not be immediately clear whether a persons suffers from such a disability or not. Section 21B (Spouse and dependants of asylum seekers and refugees) - Clause 17 of Bill: • Clarity is provided that any child of an asylum seeker and any person included as dependant have the same status as the asylum seeker concerned. • Dependants whose dependency ceases may apply for asylum in their own names.

17. Refugees Amendment Bill, 2016… Section 22 (Asylum seeker visa) - Clause 18 of Bill: The Watchenuka judgment made it clear that the individual circumstances of an asylum seeker must be considered. In order to give effect to this approach, and also to clarify the requirements for obtaining work and study visas, the following regulatory provisions have been included: • Applicant may be assessed regarding ability to sustain himself or herself and his or her dependants for period of four months. • If unable to sustain himself or herself and his or her dependants, that asylum seeker may be offered shelter and basic necessities provided by the UNHCR. • Right to work may not be endorsed on asylum seeker visa if one is able to sustain himself or herself, is offered shelter and basic necessities by UNHCR or seeks to extend the right to work, after failing to produce letter of employment.

18. Refugees Amendment Bill, 2016… Section 22 (Asylum seeker visa) - Clause 18 of Bill: • In order to confirm that rights to work or study are complied with, employers and educational institutions must provide the Department with proof within 14 days of taking such employment or being enrolled. • Failure by the employers or educational institutions to comply or issuing fraudulent confirmation is an offence. • DG has power to revoke right to work if not provided with proof of employment after 6 months of endorsement of the right to work. • An asylum seeker who fails to renew his or her asylum seeker visa after one month of expiry (save for reason of hospitalisation or institutionalisation) will be deemed to have abandoned his or her application.

19. Refugees Amendment Bill, 2016… Sections 24, 24A and 24B (Decisions regarding asylum applications, review and appeal) - Clauses 20, 21 and 22 of Bill): • Provision made for SCRA to monitor and supervise decisions by RSDO relating to granting asylum or finding applications unfounded. Currently SCRA only deals with applications rejected as manifestly unfounded, abusive or fraudulent. • Review (i.r.o manifestly unfounded decisions) may be done by any member of SCRA (i.t.o 2008 Amendment Act, DG has this power). • SCRA to inform RSDO of its decision within 5 working days. • Appeals relating to unfounded applications to be done within the prescribed period (to be provided for in the regulations).

20. Refugees Amendment Bill, 2016… Section 27(c) (General rights of refugees) - Clause 23 of the Bill: It has emerged that many asylum seekers enter into marriages with SA nationals or permanent residents for the sole purpose of obtaining permanent residence permits and that stricter regulation is required. Germany, for instance, has an eight-year residency requirement and the Namibian Constitution has recently been amended to provide for a ten-year requirement. The following new provisions have been included: • Period within which refugees allowed to apply for permanent residence permits changed from 5 years to 10 years of continuous residence in South Africa. • SCRA (and not the Minister) to certify whether a person would remain a refugee indefinitely. • In determining whether a person would remain a refugee indefinitely, SCRA to take into account all relevant factors, including efforts made to secure peace and stability in the refugee’s country of origin.

21. Refugees Amendment Bill, 2016 Section 28 (Removal of refugees from Republic) - Clause 24 of Bill: • Heading changed to remove reference to rights of refugees, as the provision does not deal with any rights. • Provision now deals with removal and detention of both asylum seekers and refugees and their dependants from the Republic on grounds of national security, national interest or public order. • Removal may only be ordered by the Minister. • Visas or status granted to refugees and asylum seekers revoked by their removal.

22. Refugees Amendment Bill, 2016 Sections 34 (Obligations of refugees), 34A (Obligations of asylum seekers) and 36 (Withdrawal of refugee status) - Clauses 25 – 27 of Bill: • Both asylum seekers and refugees to inform Refugee Reception Office of any change of address within 30 days. The current Act does not provide for a time period. In order to streamline the procedure regarding withdrawal of refugee status, the following provisions have been included: • Power to withdraw person’s refugee status now vested in SCRA (previously in Minister). • SCRA may publish declaration of cessation of refugee status of category of refugees in Gazette, to avoid individual notification. • Persons whose refugee status has been revoked to be dealt with i.t.o Immigration Act.

23. Refugees Amendment Bill, 2016 Section 37 (New offences) – added to existing offences - Clause 28 of Bill: • Public servant who provides false documentation, facilitates someone in disguising identity or status, accepts bribe. • Any person who produces a false certification i.r.o any Act administered by the Department. • Any person, other than an official, who manufactures a document purporting to be a document issued by the Department.

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